HARRY HUGHES, Governor

4101

Cf. Art. 41 § 255 (whether a decision of any    agency in a

contested case is unconstitutional, in excess    of statutory

authority, unsupported by substantial evidence, or    arbitrary or
capricious, is made by the courts).

While it may be permissible for the AELR Committee to make a
nonbinding assessment of whether a regulation "fails to comply
with the legislative intent of the statute authorizing it,"
D'Anna v. Secretary of Personnel, 47 Md. App. 180 (1980), cert.
den'd 289 Md. 737 (1981) 2/ or whether a regulation is burdensome
3/ it is our opinion that it is not constitutionally permissible
for the Committee to make these and the other judicial
determinations specified in the bill. Therefore, it is our view
that House Bill 1255 violates the separation of powers clause of
the Declaration of Rights of Maryland. Since the invalid
provisions are an integral part of the bill, we are unable to
approve it.

Very truly yours,
Stephen H. Sachs
Attorney General

1/ Wright v. Wright's Lessee, 2 Md. 429, 452 (1852), quoted
with approval in McCrea v. Roberts, 89 Md. 238, 251 (1899).
The reference in Wright is to the separation of powers
provision in Art. 6 of the Declaration of Rights of the
Constitution of 1776 which provided, as follows: "That the
legislative, executive and judicial powers of government,
ought to be forever separate and distinct." The additional
proviso of the separation of powers provision in the present
Constitution first appeared in Art. 6 of the Declaration of
Rights of the Constitution of 1851 and was repeated in
Article 8 of the Declaration of Rights of the Constitution
of 1864.

2/ The issue in D'Anna basically involved statutory
construction, not separation of powers. Under the statute
existing at the time of the decision, all proposed rules of
administrative agencies had to be submitted to the AELR
Committee. Art. 40, § 40A(f). The law further provided
that the AELR Committee should report to the General
Assembly and the Legislative Council any recommendations for
legislation to modify, change or reverse any rule considered
by the Committee. Art. 40, § 40A(e). The regulation
challenged in D'Anna had been so submitted and no
recommendation for legislative action was made by the
Committee. The Court of Special Appeals found that this
kind of scheme might be helpful to a court addressing the
statutory construction issue without in any way suggesting
that a committee of the General Assembly was authorized to
make binding determinations on the issue. The rule of
construction established in D'Anna was expressly overruled